Judge Malcolm Harrison denies motion to recuse, but prospectively recuses in some cases

At the hearing mentioned below, Hinds County Circuit Court Judge Malcolm Harrison denied the motion to recuse filed by the defense in State v. Alicia Hanner.  The State offered no argument, but did make a record that they had provided the Court with a copy of the Jenkins case prior to the hearing.  Judge Harrison then told the parties that the County Attorney did not handle cases transferred from Jackson Municipal Court to Hinds County Court, and that this was one of those cases, despite the County Court file itself listing Judge Harrison as counsel for the State.  Frank Jones, an Assistant District Attorney, handled the preliminary hearing in County Court.  In a nutshell, Harrison found as follows:

1. The cases he reviewed in preparation for the hearing all required active participation by the judge when he was prosecutor.
2. The matter of State v. Alicia Hanner was transferred from Jackson Municipal Court to Hinds County Court for preliminary hearing.
3. As a result of the transfer, the County Attorney was not involved in the prosecution of the case, therefore, no recusal warranted in this case.
4. Recusal will occur in any cases in which prosecutors from the County Attorney's Office appeared in court.

Judge Harrison handled the matter well.  He didn't appear to be upset by the motion.  I disagree with him on the "actively participate" issue, as I think Jenkins is directly on-point on this case.  We'll see where this goes.  

Recusal issue to be heard this afternoon

While Bobby DeLaughter is being sentenced in Aberdeen, his replacement, Judge Malcolm Harrison, will be hearing argument on the recusal issue mentioned here a few weeks ago.  It's my understanding that the State will have no response to the defense motion to recuse.  It's also my understanding that Judge Harrison has indicated privately that he feels he has no conflict, and will not recuse. 

There's a case directly on point here.  In Jenkins v. State, the trial judge had been county prosecuting attorney at the time of the defendant's indictment.  570 So.2d 1191 (Miss. 1990).  Even though the prosecutor/judge stated that he had no recollection of any involvement in Jenkins' preliminary hearing or in the presentation of the matter to the grand jury, the MSSC held that recusal was mandatory.  Citing an opinion reversing a case in which a grand juror went on to become a petit juror, the MSSC said:

We do not think it right and now condemn any practice whereby the accuser may also be the trier of fact. Jenkins at 1192, citing Hood v. State, 523 So.2d 302, 311 (Miss.1988). (Emphasis original to the Jenkins opinion.)

Our state follows an objective test to determine whether or not a judge should recuse himself, and that test is whether "a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality." Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986). See also, In Re Moffett, 556 So.2d 723, 725 (Miss.1990), and Jenkins v. Forrest County General Hospital, 542 So.2d 1180, 1181 (Miss.1988).  Applying the objective test to the issue at hand, I don't see how recusal isn't mandated.  We'll see this afternoon whether or not Judge Harrison agrees with me.